Wednesday, November 26, 2014

Is a Patently False Statement Necessarily a "Lie"?

by Sherry F. Colb

In my Verdict column for this week, I discuss the case of Warger v. Shauers. Warger involves Federal Rule of Evidence 606(b), which prohibits, among other things, the introduction of juror testimony in an effort to undermine the validity of a verdict. The petitioner, Gregory P. Warger, wants to introduce a juror's testimony about a fellow juror's comment during deliberations, not as itself an error affecting the verdict but instead as evidence that the latter juror materially lied during voire dire and should never have been seated on the jury. In my column, I consider whether the petitioner's distinction -- between prohibited juror testimony about a fellow juror's improper statements during deliberations and permissible juror testimony about a fellow juror's disclosure during deliberations of lies during voire dire -- is tenable.

In this post, I want to explore the meaning of a deliberate "lie." In Warger, the petitioner claims that one of the jurors lied during voire dire about her impartiality and ability to award damages if the plaintiff satisfied his burden of proof. We know that she lied, argues the petitioner, because the juror revealed during deliberations that if her daughter had been sued for the accident for which she -- the daughter -- was responsible, the lawsuit would have destroyed the daughter's life. The petitioner's inference is that this statement -- about the juror's feelings about the lawsuit -- demonstrated the falsity of the juror's claim of impartiality and willingness to award damages if appropriate. Had the juror said during voire dire, "I am biased against plaintiffs because a plaintiff could have ruined my daughter's life," then the juror would have been successfully challenged for cause and accordingly precluded from serving on the jury.

Though there is room for quibbling, I am prepared to concede to the petitioner that the juror's statements about her daughter are logically inconsistent with her prior claim to be unbiased. Does this mean, however, that the juror was necessarily lying? Was her claim of objectivity comparable to a claim she was childless, even though she in fact has a daughter, as revealed by her comment during deliberations? I think not.

To lie is to to utter a statement that one knows and understands to be false at the time of the utterance. Because we humans so regularly engage in rationalization and subconscious self-deception, however, the category of "lies" turns out to be quite a bit narrower than the category of "self-evidently false and illogical claims."

Thanksgiving is tomorrow, so it seems an appropriate time to cite a familiar example of the phenomenon of non-lying utterance of self-evidently false propositions. Americans in overwhelming numbers claim that they find unnecessary violence against animals to be morally reprehensible conduct and that they would never intentionally cause unnecessary suffering to an animal. Yet most Americans will be feasting tomorrow on the post-mortem remains of an innocent, curious, and nurturing bird who suffered tremendously during his or her radically abbreviated life and then felt terror and pain when facing his or her slaughter at the end. Furthermore, unlike most days of the year, on which the average American may quietly consume the flesh, lacteal, and ovulatory secretions of a tortured being at virtually every meal, Thanksgiving seems to license consumers to openly celebrate the privilege of carving up a corpse whose identity as a "bird" is not even hidden.

Does all of this make Americans' claim that they would never intentionally and unnecessarily harm an animal false? Yes, plainly. Purchasing turkeys and other animal products generates demand for cruelty that is extreme, profound, and entirely unnecessary. Vegan Thanksgiving feasts (some recipes here andhere) are delicious, joyous, and far less likely to yield the food poisoning that is the frequent aftermath of our so-called "Turkey Day" (a name that makes me think of designating a day on which several prisoners on death row are executed as "inmate day").

But false statements -- even preposterously false statements -- are not the same thing as deliberate lies. I suspect that many and perhaps even most of my fellow Americans who participate in a tradition of cruelty and slaughter do so without acknowledging to themselves the horror that they are thereby collectively inflicting on approximately forty-six million of their fellow earthlings. I "loved animals" for years before I became vegan, and I managed for most of that time to inure myself to the fundamental contradiction at the heart of my conduct at mealtime, patting the dog next to the table as I consumed a tortured bird's flesh or ovulatory secretions on that same table.

If we understand that the enormous inconsistency surrounding American consciousness at Thanksgiving is not precisely a "lie," then it would be difficult to accuse the juror in Warger of having lied during voir dire. I suspect that she believed, as most of us believe of ourselves, that she would be fair and open-minded. She probably was not even thinking about her daughter's situation when she answered the attorneys' questions. Likewise, most Americans, if asked "Would you hurt an innocent, feeling creature who loves being patted, displays empathy toward others, and enjoys cranberries and mashed sweet potatoes as much as you do?," would state and would believe that they would not, that they would do the right thing and refrain from violence.

The solution to self-deception is not to call it a lie -- because that does not accurately describe what is going on (and can therefore be called a falsehood in its own right). The solution is to allow ourselves to see the truth that has been there all along and to act accordingly. The problem is rarely the utterance of a deliberate lie. It is more commonly the failure to look clearly and unflichingly at ourselves, at our values, and at how those values can and do manifest themselves in our conduct in the world. And the good news is that we can make the decision to change.

18 comments:

Having read this article after having had a discussion a few hours before about the inherent cognitive dissonance involved in most lawyering, I wonder if the question isn't really rather simpler.

It seems to me that human beings naturally have an inherent tendency to narrowly construct questions that they consider to be critical, or even potentially critical, of them.

Asking someone, for example, if they would intentionally and unnecessarily harm an animal will almost always receive a negative response, but I think you will find that this response is so strong and so immediate because the person will subconsciously have construed it in close to the narrowest way possible. It is, after all, a question that presumes a variability of character none of us like being accused of.

They will therefore have mental images of kicking puppy dogs down a set of stairs and refute it: in the mind of the person answering the question, the words "intentionally" and "unnecessarily" are given their most immediate and direct form.

In the way in which they interpret the question, then, they are not in fact answering it falsely at all: the subconscious interpretation of the question has led to an honest (and potentially outraged) response.

The same seems like a potential answer in the Warger case, as well. The juror was asked whether she was impartial. Most people would consider this to presume the same 'variability of character'- or perhaps 'potential moral weakness'- that none of us would appreciate.

The juror therefore constructs the question narrowly. In the ivory tower of this mental construction- perhaps she sees herself subconsciously as an arbitrary decision-maker on a mountaintop somewhere- her statement that she could find for the plaintiff is true.

In both of these cases, though, the result of this mental construction is that, while the answer given is true for the construction imputed to the question, in a broader sense it's simply false.

But this is not a lie. As you say, lying is "to utter a statement that one knows and understands to be false at the time of the utterance", which is clearly not the case.

In your article, you mention that we might be better off without the protective rule for jurors. Does the law embody anything that is constitutionally required in this area? Or has the SCOTUS fully left fairness and efficiency to legislatures?

Maybe the problem is with the adverb "unnecessarily." If someone has to harm a turkey so that I can eat it, is that really "unnecessary,?" Prof. Colb is stacking the deck, because she presumes that my desire to eat the turkey is entitled to no weight.

It is "necessary" to let you eat a turkey as much as it is "necessary" to harm a cat for someone who wishes to eat cats.

But, that assumes the conclusion and/or is a narrow way to define the word. Why is it "necessary" to eat either the turkey or cat in the first place?

She is not presuming to give your desire "no weight" by thinking that for reasons of nutrition, ability to adequately celebrate the holiday, taste etc. it is not "so important that you must do it or have it."

A bit of thanks to Mr. Dorf, Mr. Buchanan and Ms. Colb for providing us with their insight and analysis, for allowing us to engage with them on some pretty interesting issues and for accepting our occasional disagreements with good humor and good cheer.

And of course special thanks to Ms. Colb for making us feel uncomfortable and moving us towards more humane and compassionate dietary choices.

The word "lie" is not normally part of a lawyer's professional vocabulary, especially if that lawyer is employed as a prosecutor or defense in a criminal case. The term itself is a pejorative, referring to intentional deceit or misstatement of fact that the speaker knows or should know is factually untrue. The federal criminal code, Title 18, section 1001, speaks to false statements that the speaker knows to be untrue, made to either a governmental official or to another person, and the Government might reasonably rely upon such statement in the conduct of official business. It involves an intent to deceive, and that some sort of official action is likely to follow, predicated on or on account of the content of that statement. That's a world away from someone about to be impaneled on a trial jury, who says that she can be fair and impartial, even though in her heart of hearts, she is already decided the case one way or another against one of the parties at bar.

It's hard to know what goes on inside someone's head. If 'Juror # 10' is telling the court that nothing in her past experience would cast doubt on her probity, and ability to listen, and then to come to a decision based upon the evidence presented at trial, even though the she knows full well what her feelings are about the whole thing, it's hard to tag her aspirational statement as an out-and-out lie. Were that the case, any aspirational statement that we make to change our behavior, or to do something differently next time, however improbable that might actually come about, would be damned as a lie. That's social discourse; it's not law.

If someone were to ask Juror #10 whether she is aware of anything in her past that might cast doubt on her ability to participate in the rendering of an impartial verdict, what can she say. If Juror #10 is a woman in her mid-50s, undoubtedly they are many, many life experiences that she has had, or that she knows about involving close relatives, that calls her perceptions about the way life goes sometimes. Is she lying if she demurs? If she now has a prosthetic leg or some other visible evidence of trauma caused by someone in her past, and if she is now asked to become a finder of fact in the case very much like the one that cost her her leg, the connection between what happened to her before and what she is hearing about now would undoubtedly affect her judgment; but that is an assumption that we make, based upon our lifelong experiences. Our perception of bias is probabilistic, based upon how we would expect someone to feel if faced with a near-twin of an experience that went badly for her before.

If our Juror #10 has assured the court that she harbors no bias or ill will against one of the parties, based upon her own past experiences with somebody else, I think the law would allow her to be taken at her word, even if lurking in the background she has full and sufficient reason unto herself to vote against the party involved as a retributive gesture that might or might not balance the scales on her own account. Regrettably, most or all of us do this at one time or another, sometimes more frequently than we would care to admit. But, I am constrained to give Juror #10 the benefit of the doubt, and even if she is most likely to follow her prejudices wherever they lead her.

Bottom line, it is not a lie to make an aspirational statement that might be logically inconsistent with the speaker's predilections, biases, and life experiences. A logical inconsistency is not a lie. Lies are sometimes difficult to prove, and hard to punish. Typically, a witness who utters a lie is given the opportunity to correct her statement when confronted by the facts. It is then, and only then, when the witness continues on with her made up story in the face of all the evidence to the contrary that she is subject to punishment. That's not the case here.

FWIW my own view is that this case should have been decided against the juror based on 606(b)(2)(a). I found the lower court's analysis on this point unconvincing and based on a total misconstruction of what the juror actually said and did. The last paragraph on page six of the 8th Circuit's opinion must be one of the most bone-headed things I have ever read--turkey's gobble more cogently than that.

Sadly, that ship appears to have sailed off into the sunset and now we are left with this mess of a case. In finding for the juror SCOTUS will likely do the wrong deed but for the right reason.

Since I disparaged court for bad reasoning I thought it only fair that I come back and explain mine.

606(b)(2)(a) states that juror testimony can be heard when it deals with "extraneous prejudicial information [that] was improperly brought to the jury’s attention." This requires three factual tests to be met. (1) the information must be brought to the jury's attention. (2) it must be extraneous to the jury and (3) it must be prejudicial. The juror's statement clearly meet these three tests. Astonishingly, the 8th agrees, saying the juror's statements meet this test “at first blush” but then in a conclusory statement declares, “that juror's personal experiences do not constitute extraneous information.” Huh? The issue under the rule is not whether the the personal experiences constitute extraneous information but whether the information before the jury contains extraneous information. If this were not true any juror could eviscerate 606(b)(2)(a) simply by recasting objective data as a personal experience. For example, if a juror stated that blacks were ten times more likely to kill than whites (and assuming that fact had not been elucidated at trial) they should not be able to put that information before the rest of the jury simply by telling it as part of a story. The question is simply whether the information is “brought to the jury's attention”. It was. The plain text of the rule does not countenance any claim that certain means of bringing that data to the jury's attention are OK (personal experience) while others are not (a radio broadcast).

The court cites to and quotes US. vs Krall but that case does not support their position. Krall simply held that one can't inquire into the motives and subjective prejudices of jurors. Krall is correct since obviously motives and prejudices are not external facts but rather represent internal states of mind. A personal experience, however, must be an extraneous fact because that's what the word experience means. This is manifest because both words start with the prefix “ex” which in English is the prefix meaning “outer-. The 8th then cites to Krall citing Virgin Islands vs Gerau which is even more inapposite. That case clearly states that rule 606(b)(2)(a) prohibits communication between jurors and “other third parties.” It apparently escapes the court that the juror's daughter is a third party. It is true, of course, that the juror's conversation with her daughter did not occur contemporaneous with the trial but neither Krall or Gerau hold that extraneous information must be contemporaneous, for good and obvious reasons.

I surmise that the court had many issues to cover and didn't parse the juror's statement closely. It focused in on the statement about the fact that the daughter's life would have been ruined, which clearly does not meet the exception in 606(b)(2)(a). However, the first part of the juror's statement—about the accident itself—clearly meets all the requirements of 606(b)(2)(a). It was an objective fact, brought to the jury's attention, garnered by a prohibited conversation between a juror and a third party, extraneous to the jury itself. The only question was whether the fact of the accident alone--minus the juror's feeling about the accident—was in and of itself prejudicial. This last part is one on which reasonable minds can disagree. However, given that it meets all the other criteria of 606(b)(2)(a) and there is an arguable case about the prejudicial part the trial judge should have held a hearing and decided that issue on the record.

Warger v. Shauers is a case whether the appellate court bungled a straight-forward 606(b)(2)(a) analysis. At the very minimum, the rational proffered is wholly unpersuasive and flatly contradicted by their own precedent. In my view this is a case where clever legal arguments clouded what should have been an easy remand.

The juror didn't bring the case. Warger used Shauer and are debating on what is proper investigation of the juror involved. The USSC will "find" for one of those two parties.

As to the merits, "conclusory statement" suggests a bald statement without discussion. The opinion, however, cites an exception ("we have distinguished") and explains it applies here. They don't just state a bald conclusion.

The comment refutes the analysis, which is a different matter. The exception included "subjective prejudices or improper motives of individual jurors."

The comment, including by sort of forced word prefix argument, argues "experience" is different. But, it doesn't seem as intelligible as a turkey gobble to include personal experience w/i the exceptions. The discussion as a whole cites past cases on the point.

The Martinez case, e.g., was cited by Krall. Examples of the forbidden material included things like "publicity and extra-record evidence reaching the jury room; or communication or contacts between jurors and litigants, the court, or other third parties."

Personal bias based on experiences of the sort here very well reasonably -- not saying the matter is perfectly obviously -- can be found not to be included especially given the "very strict requirements" applied.